What is Exploitation of the Elderly?

I’m sure you’ve heard of countless examples of poor treatment in retirement homes, but it doesn’t stop there.

In probate law, we see the exploit of elderly individuals by caretakers or distant relatives when the elderly person is no longer competent. This incompetence leads to the incapacity to make important decisions. Thus, it’s easy for an elderly person to be taken advantage of.

This kind of exploitation is usually in an effort to obtain the inheritance or property of a person being cared for when another party isn’t able to defend the elderly person’s interests outright.

The exploitation of the elderly is defined as the purposeful manipulation of a disabled adult or elderly person to gain control of their property, assets, or funds. 

According to the United States Department of Justice, the “exploitation of an elderly person or disabled adult” is considered a criminal activity. This means that:

Knowingly or endeavoring to obtain an elderly person’s property with the intent to deprive that person of their rightful ownership, is punishable at the federal level. Additionally, attempting to acquire property for the benefit of someone other than the elderly person will get you into a lot of trouble.

This is a common scenario amongst those who either:

  1. Stand in a position of trust with the elderly person; or
  2. Someone who has a business relationship with the elderly person.

The person attempting to exploit those who are unable to make good judgment due to age, physical or mental illness can be a family member, friend, or even an employee. It’s not always the caretaker, but it’s usually someone who is close with the dying individual.

Florida Exploitation of the Elderly

More specifically, Florida Statute 825.103 defines this concept further, and here’s a summary with a bit more detail:

An action is considered exploitation of the elderly if:

Poor Representation

A representative of an elderly person or anyone in a position of confidence willfully deprives (or tries to) the incapacitated person of property, assets, or funds by securing possession or benefits arising therein.

Elder Abuse and Neglect

A caregiver or anyone looking after the incapacitated adult fails to provide maintenance and support while using funds arising from the person’s assets and income. In some cases, the courts will consider this elder neglect or abuse.

Familial Treachery

Someone transfers, misuses, or misappropriates an elderly person’s convenience through a jointly held trust, or personal account.

Abuse of Power

There is a fiduciary duty breach by an agent, trustee, or guardian who acts without consent. This is done in an effort to transfer property or assets belonging to a disabled adult or elderly person.

Non-consensual Changes to the Will or Trust

This is what occurs when someone tries to take advantage of an inability to consent by attempting to gain benefits or possession of the elderly person’s estate. It’s especially morbid when these changes occur after the elderly person has become incapacitated.

What about Elder Abuse?

Florida statute 825.102 defines the aggravated abuse, neglect, or abuse of a person above the age of 60 as “elder abuse.”

If the victim is between 18 and 61 years of age and incapable or incompetent, the law further defines him/her as a “disabled adult.” This disability can be either physical or mental, or both.

Assisted suicide, coercion, and elder abuse.

The state of Florida defines this kind of behavior under a few specific scenarios. Here’s what “Abuse of the Elderly” means under state law:

Intentional Harm

A deliberate action with the purpose of physical or mental harm to an elder.

Intentional Harm (Indirect)

Acting through a third-party to cause physical or psychological to an elderly person.

Conscious Unintentional Harm

Causing physical or psychological injury to an elderly individual as a result of willful actions. Knowing the person’s condition and acting despite the potential consequences is also elder abuse.

What kind of crime is elderly abuse?

The law takes matters of elder abuse seriously, and consequently, Florida doesn’t consider this crime a misdemeanor.

All states have general criminal statutes regarding assault, battery, molestation, sexual assault, theft, harassment, fraud, and other offenses. These apply in cases of elder abuse, however, elder abuse typically comes with a much harsher punishment.

Courts typically view this kind of abuse as a third or first-degree felony, depending on the severity of the actions. It may be considered a third-degree felony when there is no bodily harm or permanent disfigurement for the victim.

Similar to child abuse, elder abuse is taken very seriously.

If there’s permanent damage or a grotesque bodily injury involved, Florida state law will likely classify this as a first-degree crime.

How Exploitation of the Elderly and Elder Abuse Differ

Elder abuse is an outright felony under state law.

However, exploitation can be settled as a non-criminal matter according to Florida statue 415.111. The perpetrator can face charges in a civil court and avoid jail time by footing the bill. They’ll likely pay a steep fee in punitive and actual damages arising from the neglect or exploitation.

However, aggravated neglect can carry a jail sentence of up to 15 years.

Some of the signs of elderly exploitation include:

  • neighbors or caretakers cutting off an elder’s access to the outside world
  • forged handwriting or signatures on documents
  • changes in behavior that are non-characteristic of the diagnosed illness

More obvious signs include mysterious marks or bruises, spontaneous illnesses, and opening multiple new accounts.

Elder Abuse in Estate Law

Be sure to check the prescription medications an elderly relative is taking.

Often prescription interactions cause faster decay and prescription drug dependence, resulting in high medical bills at the end of a person’s life.

This can result in an elder abuse lawsuit, as a healthcare provider may be intentionally over-medicating an elderly patient as a way to “cash-out” on their incompetence.

Furthermore, it’s common in cases of elder abuse and exploitation that the perpetrator begins to spoil the elderly person with grandiose items.

If you see this, pay close attention to the elderly person’s response and decisions thereafter.

A sick or dying person is in a vulnerable state.

As a result, the caregiver is often able to manipulate the elderly person as they are spending a large amount of time together.

This could result in the elderly person gifting a portion of their estate to the caregiver, rather than dependents, relatives, and other intended beneficiaries.

Finally, lavish home remodels or trips that the elderly person pays for but does not attend may be red flags. If you see an increase in expenditure that’s out of character, keep a close eye on the relationships involved.

If you suspect a friend, family member, neighbor, or caretaker is committing any of the above crimes, report this immediately. Be sure to expose the matter to the Florida Department of Elder Affairs and any other legal representatives that don’t have a beneficial interest in the person’s demise.

You can also go to the local authorities and they’ll point you in the right direction.